ADA Web Accessibility Regulatory Processes Now "Inactive"

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(July 27, 2017 – Jarret Cummings) Late last week, the Trump Administration published its 2017 Unified Regulatory Agenda. The list of “inactive” regulatory processes (i.e., ones that the Administration does not intend to pursue for the time being) includes:

The preamble to the current Unified Regulatory Agenda makes it clear that the Trump Administration executive orders on reducing federal regulation led to this outcome. In particular, the 2016 SANPRM’s heavy emphasis on cost-benefit issues and information signaled that the original 2010 rule-making floundered — even under the Obama Administration that launched it — due to inadequate cost-benefit analysis. Given the Trump Administration’s heavy emphasis on reducing the economic impact of federal regulation, it is likely that the pre-existing difficulties the U.S. Department of Justice (DOJ) was having with establishing costs and benefits in relation to proposed Americans with Disabilities Act (ADA) web accessibility regulations drove the decision.

The current step does not permanently block rule-making in this area — inactive status means that DOJ can recall the ANPRM and/or SANPRM at its discretion. It likely signals, though, that DOJ will not pursue web accessibility regulations in the foreseeable future. That poses significant challenges for all of the process stakeholders.

For colleges and universities, clear standards and compliance processes for web accessibility under the ADA would establish baseline expectations for meeting student, faculty, and community needs. That would reduce uncertainty and help institutions to redirect resources from compliance considerations to identifying and addressing accessibility gaps as well as fostering increased capacity through improved governance, planning, and training. As part of a broad array of higher education leadership associations, EDUCAUSE actively contributed to a response to the 2016 SANPRM that made these points and therefore supported DOJ’s proposal to adopt WCAG 2.0 AA as the baseline standard for ADA web accessibility regulations among other measures.

Of course, until rule-making processes are completed, the uncertainty about what the final regulations will require and whether institutions will be able to fulfill those requirements can generate substantial anxiety. EDUCAUSE and its partner associations, for example, had no way of knowing whether DOJ would take into account our recommendations for revising some of the SANPRM proposals, such as our request for a more realistic timeframe for achieving compliance. Those concerns are tabled for now, but the status quo of assessing and addressing institutional compliance via lawsuits and case-by-case consent decrees offers little comfort.

With this in mind, EDUCAUSE continues to work with disability advocacy organizations and higher education associations to foster continuous improvement in IT accessibility. Our collaboration with the National Federation of the Blind, the Association of American Publishers, the Software and Information Industry Association, the American Council on Education, and many other higher education groups to advance legislation on voluntary guidelines for accessible postsecondary instructional materials, the AIM HIGH Act, remains ongoing. Since the bill’s reintroduction in the House at the end of March, it has secured 34 cosponsors, encompassing significant numbers of Republicans and Democrats. The groups participating are hopeful that we will soon establish bipartisan cosponsorship in the Senate as well.

EDUCAUSE also serves on a joint committee of higher education and disability advocacy organizations seeking to identify and disseminate effective institutional practices regarding accessibility. Co-chaired by the American Council on Education and the National Center for Learning Disabilities, the committee intends to address accessibility broadly, but with a clear focus on IT accessibility as part of the process. The committee has a number of working groups underway to identify key questions and needs, as well as effective practices and related resources with which to address them. In addition to a technology working group, other groups cover planning and decision-making, policies and procedures, student support and services, and training. The goal is to have all of the ideas and references combined into a comprehensive guide that will be available online by next spring and maintained over time thereafter.

Work on formal ADA regulations is delayed for now, but voluntary stakeholder collaborations involving EDUCAUSE and the broader higher education community continue to move forward. Such projects offer the promise of expanding higher education’s capacity and effectiveness in relation to meeting accessibility needs, with the hope that colleges and universities will be well ahead of ADA web accessibility regulations when they eventually emerge. In the meantime, institutions should look to WCAG 2.0 AA as well as the ideas raised in the 2016 SANPRM and higher education’s response to it to inform their accessibility planning and development efforts.

Jarret Cummings is the Director of Policy and Government Relations for EDUCAUSE.